Posted
by
CmdrTaco
on Wednesday April 28, 2010 @08:37AM
from the we-promise-to-walk-it-every-day dept.

Raul654 writes "In March, the jury in the Novell/SCO case found that Novell owns the copyright to Unix. Now, SCO's lawyers have asked judge Ted Stewart to order Novell to turn over the Unix copyright to them. 'SCO contends the jury did not answer the specific issue before Stewart that involves a legal principle called "specific performance," under which a party can ask a court to order another party to fulfill an aspect of an agreement.'" Over at Groklaw, PJ is deep into a community project to annotate SCO's filing. It's for the benefit of future historians, but it makes amusing reading now.

That this SCO is doing this or that there is a legal avenue for them to do it?

Note: This response is going to ignore that both a federal judge and, after an appeal sent it back to the courts, a federal jury found that Novell kept control of the UNIX copyrights, since in theory SCO could appeal the second decision.

What, you didn't think there would be laws to force a company to abide by a contract they agreed to?

Having said that, as I recall said contract's second amendment* said something about selling the copyrights to SCO if they could show a reason that they would need them during the course of administering the UNIX license program. Which SCO never did.

Heck SCO, if you can't even adhere to the terms of your possibly fraudulent contract amendment, how can you possibly expect to win this?

* a potentially fraudulent document which SCO "found in a drawer" and Novell strangely didn't have a copy of, presumably signed by Ray Noorda, CEO of Novell when said contract was executed in the 90s and owner of The SCO Group at the time this lawsuit started...

Actually, no, the Caldera / The SCO Group lawsuit never had any merit and it was learned through discovery that it was known by all the Caldera / The SCO Group insiders that there was absolutely no merit to their case from the onset.

Before this entire fiasco started it was known all the way to the top of their organization that there was no basis for their plans, yet they went forward with the scam anyway. Many people have lost their jobs, some have lost money and a few have actually lost their lives from this scam. If there were any justice this single fact uncovered in discovery would have resulted in fraud charges against the perpetrators of this scam long ago.

Not quite as pathetic as the current judge, however. Given the lengths he went to in order to help SCO along during the trial, it is not beyond reason for SCO to hope that the judge simply hands them the copyrights. And it isn't beyond plausibility the current judge is enough of an idiot to actually hand them over. He's been in SCOs corner since day one, good thing the jury wasn't.

Ineffective assistance of counsel is basically never grounds for an appeal in a civil case, as this is. That one is pretty much reserved for criminal convictions, and even then if you choose your own lawyer it's a tough thing to get a court to agree with. But you would definitely have grounds for a legal malpractice claim if a lawyer intentionally lost your case.

Turning to the case actually going on here, what SCO filed is a proposed Findings of Fact and Conclusions of Law. This is a document familiar to any civil litigator, as it's what you want the judge to sign off on either after a bench trial or after a jury returns its verdict in a complicated matter such as this one. It's not more litigation or anything, it's just SCO's post-verdict filing for the court to either approve or modify. Granted, their arguments in it may border on frivolous (I haven't read it other than the table of contents, but it looks mostly legit from that), but their lawyers are ethically required to make the best arguments they can for their client and that's what they're doing.

What it sounds like is going on here is that the jury concluded that Novell owns the Unix copyright, so the lawyers looked for a reason why SCO should get it and came up with only one answer: That Novell had contracted to give the copyright to SCO and the Unix copyright is a unique thing that justifies specific performance (normally reserved for things like real estate sales and other unique things where just paying the value of the item won't allow you to go out and buy it for yourself, which is a more standard contract remedy). This is perfectly reasonable and a lawyer who doesn't at least try it is not a lawyer you'd want to hire.

To some extent, it's impressive. McBride has figured out that as a CEO, he doesn't need a product, and he doesn't even need a legal theory to stay employed. All he needs is to stay in court for as long as possible, and he has access to whatever money is in SCO's name. If Thompson is any indication it'll be about 5-6 years before he even the most insulting filings won't give him a judge's ear anymore. It's really quite impressive, and a nice gig if you have the stomach for it. I'm pretty sure his days consist of telling his lawyers "I don't care how stupid it is, file another complaint, objection or legal brief." and going golfing.

Just one problem with the upfront fee agreement: all the really competent lawyers at the firm long ago distanced themselves from this cluster-fuck and passed the responsibility for the case onto the most junior lawyers. So yes, SCO is still getting representation, but it is inexperienced, fresh-out-of-law-school representation... which explains a lot of what you see in their filings.

What SCO's legal argument now is quibbling over details. SCO says the jury ruled that they did not receive the copyrights in the APA in the past. The APA in the most favorable view to SCO is that the APA was a promise to transfer the copyrights at some indeterminate future date. IANAL, but for this future transfer to occur, a contract must be signed and money must be paid. A promise to pay is contingent on the details. These are details that neither Novell nor SCO worked out in the past. This the problem for SCO since Novell can now simply say: "We'll transfer the copyrights if you pay us $300 trillion dollars."

The Yarro et al lawsuit painted a picture of Val Kreidel, the daughter of Ray and Tye, as one of the driving forces behind the ousting of the executives...

Under the agreement, Yarro, Mott and Christensen received undisclosed sums, and Yarro was given all of Canopy's shares -- nearly five-and-a-half million -- of SCO stock, making him that company's largest shareholder....

Less than a week after attorneys formally announced a settlement, Val Kreidel, the Noorda's only daughter and a mother of four, died of a self-inflicted gunshot wound at her home in Huntington Beach, Calif....

In affidavits, employees stated that they attended a December 22 meeting in which they were "bullied" into signing a backdated document in the presence of attorneys. A day later, IT director Rob Penrose died of a self-inflicted gunshot wound in his home, and soon thereafter five of Canopy's original employees voluntarily resigned.

This is standard operating procedure in corporate america - set up a proxy or shell corporation to cause confusion in the marketplace, and bankrupt your competetors through fivolous law suits or IP issues - esp. if you can't buy them out. What is suprising is that anyone thinks microsoft's behavior is unusual or over the top... every big company does this crap - its the american way.

1) a judge already ruled as a finding of fact that SCO never did own the copyrights, but it was overturned on appeal and sent to a jury.2) the original claim was for slander of title, i.e. that Novell was falsely claiming to own SCOs property and harmed SCO.3) The jury determined that Novell did in fact own the copyrights, so there was no slander involved, only truth.4) SCO claimed that they just wanted their day in court, except now that they've got it, they've filed a new motion to overrule the jury decision or give them a new trial because "The jury simply got it wrong" (First paragraph of the motion).

So now SCO wants to go back and say that even though a judge felt that as a matter of law they didn't own the copyrights, and the jury confirmed that on appeal, they want a different judge to say 'Oh, they were just dumbasses. The copyrights should have been yours. And that means Novell did maliciously slander you after all, even though there was enough doubt that a judge & jury both agreed they owned the copyrights."

So, um, not to say that it's not good lawyering but that sounds frivolous as hell, especially when they're in bankruptcy and the lawyers keep getting paid.